KISNA Vs. HIRALAL

JUDGEMENT

(1.) THIS appeal has been preferred by the plaintiff-appellant being aggrieved by the dismissal of the suit by the Courts below. Plaintiff-appellant and respondents No. 4, 5 and 6 filed the suit for declaring the sale deed executed on 28.6.82 by plaintiff-Kishna in favour of Hiralal-defendant No. 1. It was categorically pleaded by the plaintiff that the land which was the subject matter of the document was of joint khata and as per the law no part of survey number could be alienated by one of the co-sharers nor as a matter of fact, the sale was intended. Survey Nos. 246 and 247 are joint on the spot. The transaction was that of loan and by way of collateral security of Rs. 2,000/- which was the amount of loan advanced by defendant No. 1 to the plaintiff, the document was got executed. Plaintiff was not a party to any of the sale deed. Plaintiff is poor and illiterate, hence declaration was sought to declare the sale deed as a sham document and in case it is found necessary, possession be ordered to be restored and the future mesne profits were also claimed.

(2.) THE defendants in their written statement took the plea that survey No. 246 along-with other land was already partitioned and thereafter the sale was made. It is also stated that survey Nos. 246 and 247 were not the joint land. Sale deed was not for the collateral security of loan as suggested. Possession was handed-over. Mutation has been obtained. Trial Court framed the following issues :

(3.) LEARNED counsel appearing for the plaintiff-appellant has submitted that it is a case where there was failure to frame material issue by the trial Court on the pleadings of the parties, hence the trial is radically defective. It is submitted that Vidisha was forming a part of Gwalior State and Banaras School of Hindu Law is applicable in the area. Counsel for the appellant placed reliance on the full bench decision of this Court in the matter of Diwan Singh v. Bhaiyalal 1997 (2) JLJ 167 = MPLJ 1997 (2) 202 to submit that under Banaras School of Mitakshara Law, it is necessary that the consent of the co-sharer should be obtained to the extent of selling co-parcener's share. In the absence of consent of the co-sharers such alienation is void. He submitted that the finding with respect to the execution of the sale deed is perverse and the burden of proof has been wrongly placed on the plaintiff who is illiterate. Plaintiff-Kishna knows only how to put the signature and nothing beyond it.